California Penal Code Section 261.5 PC: Statutory Rape

1. Definition and Elements of the Crime

Rape is typically defined as sexual intercourse that lacks consent. There may be situations where the victim is deemed unable to provide consent, because they are minors. In these situations, a defendant can be charged with statutory rape under California Penal Code Section 261.5 PC.

The crime of statutory rape contains the following elements, all of which must be proven beyond a reasonable doubt:

The defendant had sexual intercourse with another person

The defendant and the other person were not married at the time of the intercourse.

The alleged victim was under the age of 18 at the time of the intercourse.

It is not a defense that the other person may have consented to the intercourse. For the purpose of the statute, a person becomes one year older as soon as the first minute of his or her birthday has begun.

It is important to note that even minors can be prosecuted for statutory rape for having sexual intercourse with other minors. Such prosecutions are rare, but are possible under the law. In these situations, the minor would be prosecuted in juvenile court.

If the defendant is older than the victim by three years or less, statutory rape is a misdemeanor offense. If the defendant is more than three years older than the victim, the offense is a “wobbler” which can be charged as a felony or a misdemeanor. And if the defendant is 21 or over and the victim is under 16, the offense can be a felony or a misdemeanor, however the felony penalties would be more severe.

The defendant is not guilty of this offense if he or she reasonably and actually believed that the other person was 18 or older. In order for this to exist, there must have been evidence tending to show that the defendant had a reasonable belief that the other person was 18 or older.

2. Examples

A 19-year-old man has sexual intercourse with his 17-year old girlfriend. This man could be charged with misdemeanor level statutory rape, because his girlfriend is still a minor.

A 24-year-old man and his 15-year-old wife come to California on vacation and have sexual intercourse while in the state. The man and wife were legally wed in a state that permits such marriages. This man could not be prosecuted for statutory rape as he was married to the “victim.”

As mentioned above, an honest and reasonable belief that the “victim” was 18 or older is a defense against statutory rape charges. Evidence of this belief can include representations made by the minor that they are 18 or older and where the defendant met the minor (i.e. at a bar or club that is usually restricted to minors).

In addition, because this is an offense in which there may be no physical evidence and instead must rely on the accusations of an alleged victim, there are often circumstances where the defendant is falsely accused of statutory rape.

5. Penalties

As mentioned above, statutory rape can be a misdemeanor (if there is less than a three year age gap between the defendant and the victim) or a “wobbler” offense that can be either a felony or misdemeanor (if there is more than three years between the victim and defendant). In deciding whether to file as a felony or a misdemeanor, the prosecutor will consider the facts of the specific offense and the defendant’s criminal history.

For felony statutory rape convictions, the defendant can be sentenced to up to three years in prison and up to four years if the defendant was 21 or over and the victim was under 16.

While a conviction for statutory rape itself would not require sex offender registration, a conviction for related offenses for rape under California Penal Code 261 PC or lewd and lascivious acts with a child would carry a registration requirement.

6. Criminal Defense for Statutory Rape Cases

Statutory rape is a serious offense that can send someone to prison for completely consensual behavior. These types of offenses require an experienced attorney who can work immediately before charges have been filed to try and prevent a criminal filing. Los Angeles Criminal Defense Attorney Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who is highly respected throughout the criminal justice system. In many cases, Mr. Kraut is able to intervene before charges have been filed in order to work with police detectives or prosecutors to try to avoid a criminal case.

Michael Kraut is outstanding! He genuinely cared about my case and instructed my mom and I throughout the entire process. He was very clear on what he needed in order to receive the best results. He kept us updated until the end. I thank him so much for getting my charges rejected. I highly recommend him to anyone with legal needs! Shaquan Thomas

★★★★★

I contacted Michael with concern for my personal and business reputation. He was very reassuring and confident the entire time. After about 3 weeks it was determined that no charges were being filed by any agency and I was in the clear of any investigation. One thing that is amazing is just how FAST Michael is at replying to phone calls, texts, and even emails! We are talking under 30 minutes in most cases. That is unheard of for most attorneys! Michael is incredible and not your typical run of the mill attorney. For best results hire him if you feel like you might be under investigation or could face charges. Even if you know you are innocent it is best to take care of the smoke before it becomes a fire. Brad

★★★★★

Michael Kraut is-hands down-the best criminal defense attorney and I can't begin to thank him for all that he did for me and my family. I reached out to him in the middle of the night and less than a couple hours later, he had gotten back to me and scheduled a meeting. He's a no-nonsense attorney who knows how to get the job done! From the second we retained him, I had peace of mind in knowing that we were in the best hands possible. If Michael Kraut couldn't get it done, I knew that it couldn't be done at all. You can't put a price tag on your freedom. He was worth every single penny. Lida

★★★★★

Michael Kraut is an outstanding attorney. He was extremely professional, and straightforward, yet sensitive with my case. I am confident I made the right choice by hiring Michael. I highly recommend him to anyone seeking a truly experienced lawyer. Daniel Lepervanche

★★★★★

Michael Kraut - I cannot thank you enough for all that you did for ​my son. When I came to you I read that you used to be a district attorney but I never knew how much that meant until I watch you in court. I knew it took 3 months but the final day when I heard the judge say that all charges were dismissed it was all worth it! I will always be grateful for all that you did for us. A.N.